Monday, September 27, 2010
Established mediators have often expressed frustration with the pro bono panel. Phyllis Pollack recently posted a piece complaining of parties and attorneys who abuse the privilege of the pro bono panel. Victoria Pynchon wrote a similar series of blog posts last month. And Jeff Kichaven published an article in the LA Daily Journal last month proposing that attorneys pledge not to use the pro bono panel in cases in which they are receiving fees for their services. I understand and sympathize with the frustration expressed by these experienced mediators (myself included) who are providing a valuable service that generally saves parties enormous amounts of money. We deserve to be compensated fairly for our time, and parties ought to get used to the idea that mediators deserve to be compensated as much as attorneys do. Of course there will always be cases where attorneys should consider working pro bono, and that applies just as strongly to mediators, but there are also a lot of cases where use of a pro bono mediator is unwarranted. It can be penny wise and pound foolish in many cases to use a pro bono mediator, if as a result the parties do not take the process as seriously and if for that reason the mediation does not advance or even impedes resolution of the dispute. In such cases, the parties would still be paying their own attorneys to attend a wasted mediation session, and may incur additional fees for continued litigation that might have been unnecessary if they had invested a little more time and money in the mediation process.
On the other hand, use of the pro bono panel is often justified, and many of the parties and litigants I see who are fortunate enough to be assigned to me as a sometimes pro bono mediator are highly appreciative of my services, and probably would not have chosen to mediate at all if they had no alternative but to pay the mediator.
Mediation itself is here to stay, and parties and attorneys will become more and more accustomed to seeing disputes resolved in mediation. They will develop more sophistication about the process, and should in more cases recognize the value of choosing experienced mediators and having to compensate them for their time. At the same time, this field is going to develop standards and practices and professional qualifications, and start imposing the same kinds of licensing and credentialing restrictions as other business and professions--whether accountants or lawyers or dentists or beauticians or house painters--have done. That means it will become harder for parties to obtain the services of a certified mediator without paying for those services. Those who do not wish to or cannot afford to pay for a mediator's services will either have to use an unlicensed or informal go-between to help settle their disputes, or they will have to do it themselves, just as people are free to paint their own house or draft their own will or even pull their own teeth.
I also think that one way the courts can help with providing quality mediation services to people who need them is hiring some more mediators on the court staff. Taxpayers already pay judges' salaries, and some of those judges are assigned full time to settling cases. Almost all the rest of the judges spend a considerable amount of time encouraging parties to settle or actually conducting settlement conferences. Taxpayers also foot the bill for the court personnel who currently administer the mediation program. It therefore makes sense for the courts to make available "free" mediation services, by salaried court personnel, for litigants deemed entitled to such assistance. Courts need to get used to the idea that they are already in the dispute resolution business as much as they are in the "justice" business, and that it is a worthwhile expenditure of public funds to support dispute resolution professionals, just as it is to provide judges and clerks and bailiffs to assist the public in resolving disputes. Meanwhile litigants who prefer a private mediator outside the court system should be free to avail themselves of the services of such individuals, just as litigants today can choose between having their case decided by a "free" judge, who is a paid state employee, or a private judge.
(photo of the complex case courthouse in mid-Wilshire from skateallcities skateboarding site, proving that courthouses can be viewed from many perspectives and can serve multiple functions)